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Deliberative Governance & Law

Based at The Australian National University and McGill University, the Deliberative Governance and Law project is an international network of scholars advancing research on institutional innovations based on cutting-edge studies of law, governance and deliberative democracy. The project provides a platform for innovative ideas to influence domestic and international approaches to governance.

The planned series of citizens’ juries in the ACT is worthwhile and should be continued.

A wealth of international experience shows that citizens’ juries are frequently more broadly-trusted and effective than relatively partisan and gridlocked decision-making in legislatures.

This Report recommends changes in the practice of ACT citizens’ juries in order to improve their design and performance:

The close and ongoing involvement of expert decision-makers in the pilot citizens’ jury’s deliberation stages risked undermining the autonomy of jurors.

Most claims of bias in the process cannot be established or are subject to reasonable disagreement. However, bias was evident in the official rhetoric surrounding the proceedings.

The ACT Government and democracyCo raised barriers to external scrutiny of, and democratic input into, the citizens’ jury process.

Insufficient evidence exists to verify other alleged faults in the process, including: that some official information released to the public was incomplete or misleading; that some information presented tojurors was incomplete or misleading; that the citizens’ jury was insufficiently demographically representative of the wider community; and that the process was disorganised and chaotic, resulting in prejudice to some stakeholders.

18

Jan

2018

DGAL Graduate Student Workshop

This workshop, held simultaneously at McGill University's Faculty of Law and the ANU Law School, was the latest in a series of such events featuring graduate students' works-in-progress. DGAL co-directors Hoi Kong (McGill) and Ron Levy (ANU) also presented their work-in-progress on 'Shotgun Referendums'.

PRESENTED BY SWISSINFO #DEARDEMOCRACY AND THE ANU/MCGILL PROJECT ON DELIBERATIVE GOVERNANCE AND LAW

A roundtable discussion comparing the recent marriage plebiscite experience in Australia with recent events in Europe.

Bruno Kaufmann, Initiative and Referendum Institute Europe

Dr Ron Levy, ANU College of Law

Dr Ryan Goss, ANU College of Law

Kevin Boreham, ANU College of Law

Guest speaker Bruno Kaufmann is Director of the Initiative and Referendum Institute Europe, co-president of the Global Forum on Modern Direct Democracy. As a Board member of the Swiss Democracy Foundation and an Expert of Modern Direct Democracy, he will visit Australia on his world tour on modern direct democracy. Mr Kaufmann was involved in the publication of the IDEA Global Passport to Modern Direct Democracy, a compact book describing the tools of modern direct democracy, providing key definitions and giving a global overview of available direct democracy mechanisms.

26

Sep

2017

Udit Bhatia (Oxford) Seminar: 'Against Epistocracy'

Upcoming seminar: Udit Bhatia, Lecturer in Political Theory, Lady Margaret Hall, University of Oxford, presents a seminar for the Deliberative Governance and Law Program and the wider ANU community, at the ANU College of Law (room tba) at 3pm on 26 Sept, 2017. Chair: Dr Ron Levy.

Against Epistocracy: Reconsidering the Demographic Objection

Why should we prefer democracy to an epistocracy of competent persons? In his response to this question, David Estlund appeals to the ‘demographic objection’. He argues that ‘The educated portion of the populace may disproportionately have epistemically damaging features that countervail the admitted epistemic benefits of education’. The force of the argument lies in its attempt to undermine the epistocratic argument on its own terms. Epistocracy privileges the epistemic quality of decisions in the design of political institutions. Estlund argues that it is precisely this quality that is likely to suffer as a result of the unequal distribution of education and its resultant exclusion of some groups in an epistocracy. This paper attempts to build upon and strengthen Estlund’s argument in three ways. Firstly, it emphasises specific epistemic harms that stem from the exclusion of already disadvantaged demographic groups. Secondly, it attempts to sever the objection from the assumption of the ‘best judge’ principle. Thirdly, it turns the focus away from purely consequentialist harms of epistocracy’s epistemic weaknesses. Instead, it shows how such epistemic weaknesses result, simultaneously, in the violation of a side constraint for epistocracy, the equitable distribution requirement.

Dr Ron Levy from the ANU College of Law has co-authored a book with University of Queensland’s Graeme Orr on The Law of Deliberative Democracy. Justice Peter Applegarth of the Supreme Court of Queensland recently launched the book.

The ANU College of Law is committed to health and wellbeing in the law, for all our students and academic and professional staff. This is the inaugural Wellbeing in the Law Week, presented by the ANU College of Law Wellbeing Initiative and the ANU Law Students' Society.

The Deliberative Governance and Law Project bridges the gap between the theory and real-world practice of democratic deliberation. The project connects a network of scholars, lawyers and members of governments working in the area, enabling them to share results and collaborate to provide practical reform proposals to improve deliberation in democracies around the world. Uniquely, we focus on the roles of law and legal practice in enabling, inhibiting or shaping democratic deliberation.

Deliberative democracy

The discipline of deliberative democracy emerges from a concern for resolving tensions between the ideals of democracy and the growing number of issues confronting public governance. In an era of increasing political and legal complexity, deliberative democracy focuses on finding solutions to how citizens can remain meaningfully engaged and involved in democratic decision-making.

With its ambitious aims and an impressive emerging track-record of real-world application, deliberative democracy is arguably the most important movement in political theory and institutional design of the past two decades. Yet most research in the area lacks sustained analyses of laws as critical, and qualitatively distinct, features of the deliberative democratic institutional landscape.

The use of statute and judge-made law to regulate political process has burgeoned in many democracies, reflecting attempts to grapple with corruption, electoral inequality and concentrations of official power. These fields are now well-established, yet they have often developed around a limited class of theories about ‘politics’ that omits discussion of deliberative democracy.

The project

The Deliberative Governance and Law Project aims to address this gap through the dissemination of research, engagement with political decision-makers, and popular discourse. A principal aim is to help lead an international conversation about how law – and law reform – can affect deliberation.

The Co-Directors are Dr Ron Levy of The Australian National University, ANU College of LAW, Canberra, Australia, and Dr Hoi Kong, of the McGill University Faculty of Law, Montreal, Canada. The Associate Director is Dr Dominique Dalla-Pozza, also of the ANU College of Law.

The Deliberative Governance and Law Project has three current sub-projects, these are outlined below.

Projects & clusters

Deliberative Governance and Law

Contact:

Institutional Designs for Public Deliberation: Empowering Citizens to Shape Political Life

Project Leader: Associate Professor Hoi Kong

‘Shotgun Referendums’: Popular Deliberation in Contested Regions

Much deliberative democracy theory examines the capacity of public institutions to promote governance by deliberation instead of bald coercion (eg, majority domination or military might). Recent works have even examined the prospects for deliberation during an exercise long thought to be paradigmatically anti-deliberative: referendum voting.

Authors such as Stephen Tierney, Jim Fishkin, Paul Kildea, and Ron Levy have assessed the possibilities of designing ‘deliberative referendums’. Levy has described how creative referendum ballot design can prompt relatively purposive and generalised (rather than narrowly self-interested) voter deliberation, for instance by including fundamental questions about voters’ preferred values prior to questions on specific reform options.

Yet these past works have seldom strayed from the comfort zone of stable polities with relatively homogenous commitments to liberal-democratic principles. This project sets out to assess the plausibility of using deliberative referendums to achieve lasting constitutional settlements in conflict regions.

‘Shotgun referendums’ refer to referendums/plebiscites in regions such as Crimea, Hong Kong, and (aspirationally) Israel-Palestine. Depending on their design, and on the intentions of their creators, shotgun referendums can either help to resolve or catalyse conflict. Armed conflict – real or threatened – presents an outsized difficulty for deliberation. In part this is due to markedly varying levels of commitment – among ordinary citizens and governmental elites – to deliberation in lieu of coercive force.

Only a few authors have previously considered the viability of deliberative democracy across borders and in conflict areas. This project assesses, specifically, the capacity of deliberative referendums to reset a social, political, or even military impasse over the shape and nature of a contested border

Project Leaders: Associate Professor Hoi Kong and Dr Ron Levy

Deliberative Constitutionalism

Expectations of widespread direct citizen involvement have emerged in the constitutional law and practice of many countries. Yet corresponding standards of deliberation in democratic constitutional reform remain unsettled. Drawing on theories of deliberative democracy, this project asks whether, to count as democratically legitimate, constitutional reform must safeguard the quality of deliberation.

The project identifies new requirements for constitutional legitimacy: that reforms must be at once widely participatory and robustly deliberative. It also evaluates a selection of legal and institutional innovations capable of achieving these high aims. Several kinds of deliberative constitutional practice can be imagined. Some see citizens become more meaningfully involved in reform and adjudication. Others focus on how more elite bodies, especially including courts, can bring a comparatively rational and deliberative inputs into public democratic discussion. In either case, this project describes and evaluates a range of possibilities using theoretical and empirical scholarship.

Activities thus far have included:

A three-city series of conferences on Deliberative Constitutionalism: at the Australian National University (October 2015), University College London (November 2015) and McGill University (April 2016).

An edited collection airing cutting-edge ideas about Deliberative Constitutionalism, and drawing on contributions from leading public law and deliberative democracy scholars from 10+ countries, is currently in development.

The quantity and quality of political opinion polling are sources of concern for electoral democracies worldwide. A significant number of countries regulate polling by embargoing publication in the latter stages of the election period, or by mandating disclosure of key information about each poll. Such regulation, however, is rare in common law systems, where ‘free speech’ arguments tend to hold sway, sublimating concern for the deliberative health of political discourse. This article examines the issue, comparing regulation and case law internationally in light of the evolution, benefits and pathologies of opinion polling. A distinction can be made between polling on issues, which permit us all to reflect on the positions of fellow citizens on substantive issues, and the almost endless stream of polling on voting intentions, which offers little from a deliberative perspective. We recommend regulation to ensure disclosure, at the point of publication, of key information about each opinion poll (eg who conducted it, the wording of questions and margins of error), as well as a campaign-period embargo on publishing electoral opinion polling.

The planned series of citizens’ juries in the ACT is worthwhile and should be continued.

A wealth of international experience shows that citizens’ juries are frequently more broadly-trusted and effective than relatively partisan and gridlocked decision-making in legislatures.

This Report recommends changes in the practice of ACT citizens’ juries in order to improve their design and performance:

The close and ongoing involvement of expert decision-makers in the pilot citizens’ jury’s deliberation stages risked undermining the autonomy of jurors.

Most claims of bias in the process cannot be established or are subject to reasonable disagreement. However, bias was evident in the official rhetoric surrounding the proceedings.

The ACT Government and democracyCo raised barriers to external scrutiny of, and democratic input into, the citizens’ jury process.

Insufficient evidence exists to verify other alleged faults in the process, including: that some official information released to the public was incomplete or misleading; that some information presented tojurors was incomplete or misleading; that the citizens’ jury was insufficiently demographically representative of the wider community; and that the process was disorganised and chaotic, resulting in prejudice to some stakeholders.

18

Jan

2018

DGAL Graduate Student Workshop

This workshop, held simultaneously at McGill University's Faculty of Law and the ANU Law School, was the latest in a series of such events featuring graduate students' works-in-progress. DGAL co-directors Hoi Kong (McGill) and Ron Levy (ANU) also presented their work-in-progress on 'Shotgun Referendums'.

PRESENTED BY SWISSINFO #DEARDEMOCRACY AND THE ANU/MCGILL PROJECT ON DELIBERATIVE GOVERNANCE AND LAW

A roundtable discussion comparing the recent marriage plebiscite experience in Australia with recent events in Europe.

Bruno Kaufmann, Initiative and Referendum Institute Europe

Dr Ron Levy, ANU College of Law

Dr Ryan Goss, ANU College of Law

Kevin Boreham, ANU College of Law

Guest speaker Bruno Kaufmann is Director of the Initiative and Referendum Institute Europe, co-president of the Global Forum on Modern Direct Democracy. As a Board member of the Swiss Democracy Foundation and an Expert of Modern Direct Democracy, he will visit Australia on his world tour on modern direct democracy. Mr Kaufmann was involved in the publication of the IDEA Global Passport to Modern Direct Democracy, a compact book describing the tools of modern direct democracy, providing key definitions and giving a global overview of available direct democracy mechanisms.

26

Sep

2017

Udit Bhatia (Oxford) Seminar: 'Against Epistocracy'

Upcoming seminar: Udit Bhatia, Lecturer in Political Theory, Lady Margaret Hall, University of Oxford, presents a seminar for the Deliberative Governance and Law Program and the wider ANU community, at the ANU College of Law (room tba) at 3pm on 26 Sept, 2017. Chair: Dr Ron Levy.

Against Epistocracy: Reconsidering the Demographic Objection

Why should we prefer democracy to an epistocracy of competent persons? In his response to this question, David Estlund appeals to the ‘demographic objection’. He argues that ‘The educated portion of the populace may disproportionately have epistemically damaging features that countervail the admitted epistemic benefits of education’. The force of the argument lies in its attempt to undermine the epistocratic argument on its own terms. Epistocracy privileges the epistemic quality of decisions in the design of political institutions. Estlund argues that it is precisely this quality that is likely to suffer as a result of the unequal distribution of education and its resultant exclusion of some groups in an epistocracy. This paper attempts to build upon and strengthen Estlund’s argument in three ways. Firstly, it emphasises specific epistemic harms that stem from the exclusion of already disadvantaged demographic groups. Secondly, it attempts to sever the objection from the assumption of the ‘best judge’ principle. Thirdly, it turns the focus away from purely consequentialist harms of epistocracy’s epistemic weaknesses. Instead, it shows how such epistemic weaknesses result, simultaneously, in the violation of a side constraint for epistocracy, the equitable distribution requirement.

31

May

2017

DGAL Graduate Student Workshop

This intensive workshop, held at McGill University's Faculty of Law, was the first in a series of such events featuring graduate students' works-in-progress. Two graduate student speakers (Jeffrey Kennedy and Sarah Berger Richardson, both of McGill) presented his own work for feedback from DGAL co-directors Hoi Kong (McGill) and Ron Levy (ANU). Dr Levy also presented work for feedback from graduate students and others in attendance.

Essential reading for those interested in either law or politics, the book presents a challenging critique of laws governing electoral politics in the English-speaking world. The book contends that the conflict between law and public deliberation is not inevitable: it results from judicial and legislative choices. An extended, original analysis demonstrates how lawyers and deliberativists can engage with each other to bridge their two solitudes.